140 Wash. 2d 456 | Wash. | 2000
Lead Opinion
Petitioner Jason Brown seeks review of a decision of the Court of Appeals, Division One, which affirmed his conviction in the King County Superior Court for assault in the third degree under RCW 9A.36.031(l)(g).
QUESTION PRESENTED
The question presented in this case is whether knowledge that the victim is a law enforcement officer in the performance of official duties at the time of an assault is an implied element of the crime of assault in the third degree under RCW 9A.36.031(l)(g), thus requiring the State to charge and prove that element beyond a reasonable doubt.
STATEMENT OF FACTS
Petitioner Jason Brown, also known as Joseph Osell Palmer, was charged by second amended information in the King County Superior Court with the crime of assault in the third degree under RCW 9A.36.031(l)(g).
The pertinent portion of Charge II in the second amended information stated:
That the defendant JASON BROWN AKA JOSEPH OSELLI [sic] PALMER in King County, Washington, on or about March 10, 1995, did intentionally assault Officer Gregory Neubert, knowing that he was a law enforcement officer or other employee of a law enforcement agency who was performing official duties at the time of the assault;
Contrary to RCW 9A.36.031(l)(g), and against the peace and dignity of the State of Washington.
Plainclothes officer Gregory Neubert posed as a narcotics buyer outside McDonald’s restaurant at Third Avenue and Pine Street in downtown Seattle.
Officer Neubert testified that on the day of Petitioner’s arrest, he initiated a conversation with a male person outside McDonald’s and asked whether he had narcotics for sale.
Officer Neubert testified that Petitioner Jason Brown approached him in front of the restaurant and asked what he was looking for.
Officer Neubert testified at trial that Petitioner responded to his accusation by unzipping his jacket, reaching inside and slowly removing what appeared to the officer to be a handgun.
The case was tried before a jury in the King County Superior Court on December 13, 1995. The Honorable Linda Lau gave instructions to the jury, which included the following:
[INSTRUCTION] No. 13
A person commits the crime of assault in the third degree when he assaults a law enforcement officer who was performing his or her official duties at the time of the assault or when he assaults another with intent to prevent or resist the lawful apprehension or detention of himself or another person.[38 ]
[INSTRUCTION] No. 14
To convict the defendant of the crime of assault in the third degree, as charged in count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
*463 (1) That on or about the 10th day of March, 1995, the defendant assaulted Greg Neubert;
(2) That the defendant knew at the time of the assault that Greg Neubert was a law enforcement officer[;]
(3) That at the time of the assault Greg Neubert was a law enforcement officer or other employee of a law enforcement agency who was performing his official duties; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to count II.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty as to count II.[39 ]
[INSTRUCTION] No. 15
An assault is an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.[40 ]
Petitioner took no exception to these instructions.
During deliberations on December 22,1995, the jury foreman submitted a written inquiry to Judge Lau referring to “Instruction #14, Element #2,” asking “Is it third degree assault when the suspect becomes aware of the fact that the victim is a law enforcement officer at some point in the course of an assault, and is not aware of that at the initiation of an assault?”
At the conclusion of its deliberations, the jury found Petitioner “guilty” on Count I, violation of the Uniform Controlled Substances Act, and Count II, assault in the third degree.
On February 8, 1996, Petitioner filed a notice of appeal to the Court of Appeals, Division One, challenging only his conviction for assault in the third degree.
The Court of Appeals, the Honorable Faye C. Kennedy writing, affirmed the conviction. The court stated that although Petitioner did not object to Instruction Number 14 at the time of trial, he could challenge it for the first time on appeal as a manifest error affecting a constitutional right.
Petitioner Jason Brown petitioned this Court for review of the decision of the Court of Appeals. In his petition for review, Petitioner challenged only the court’s conclusion that knowledge is not an implied element of assault in the third degree under RCW 9A.36.031(l)(g).
DISCUSSION
The Washington Criminal Code
Assault in the third degree. (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:
(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault;[56 ]
*466 (2) Assault in the third degree is a class C felony.
The word “assault!’ is not defined in the Washington Criminal Code.
Petitioner claims that to be convicted under RCW 9A.36-.031(l)(g), a defendant at the time of an assault must know the victim was a law enforcement officer engaged in performing official duties.
The Court of Appeals, Division Three, in State v. Allen relied on State v. Hopper, 118 Wn.2d 151, 153-54, 822 P.2d 775 (1992), in concluding that knowledge was an implied element of former RCW 9A.36.031(l)(f), now recodified as RCW 9A.36.031(l)(g).
A person acts with knowledge when he is aware of the circum*467 stances or result described by the statute defining the offense. RCW 9A.08.010(l)(b).[63 ]
The circumstances or result described by RCW 9A.36-.031(l)(g) is the assault of a law enforcement officer performing his duties at the time of the assault. In addition to an intent to commit an act which constitutes an assault, . . . [RCW 9A.36.031(l)(g)] requires knowledge or intent that the person assaulted was a law enforcement officer engaged in performing his official duties.[64 ]
Under the plain meaning of RCW 9A.36.031(l)(g), knowledge that the victim was a police officer in the performance of official duties is not an element of the crime of third degree assault. The State was not required to prove such knowledge on the part of Petitioner. This notwithstanding that the State in the second amended information during the course of trial charged Petitioner with assault “knowing that [Officer Neubert] was a law enforcement officer . . . performing official duties at the time of the assault.” This was not necessary for third degree assault under the specific language of RCW 9A 36.031(l)(g). Under that section the State needed only to prove a criminal defendant committed an assault against another person and that the other person was a law enforcement officer performing official duties at the time of the assault. But the State need not prove the defendant knew these facts at the time of the assault.
The statement in Allen that “[i]n addition to an intent to commit an act which constitutes an assault, . . . [RCW 9A.36.031(l)(g)] requires knowledge or intent that the person assaulted was a law enforcement officer engaged in
Jury Instructions
In this case, the jury instructions included the essential elements of RCW 9A.36.031(l)(g) with respect to criminal assault. Instruction Number 13 provides in part: “A person commits the crime of assault in the third degree when he assaults a law enforcement officer who was performing his or her official duties at the time of the assault. . . .” This language is substantially identical to the wording of RCW 9A.36.031(l)(g).
Instruction Number 15 correctly defines “assault” and includes the appropriate requirement of “intent to create in another apprehension and fear of bodily injury . . . even though the actor did not actually intend to inflict bodily injury.” It also includes the causation requirement that defendant’s act “in fact creates in another a reasonable apprehension and imminent fear of bodily injury.” Element 3 of Instruction Number 14 is consistent with the requirement under the wording of the statute that the State prove the victim was a law enforcement officer in the performance of official duties.
The trial court was in error in including element 2 of Instruction Number 14, which stated it must be' proved beyond a reasonable doubt “[t]hat the defendant knew at the time of the assault that Greg Neubert was a law enforcement officer.” Actually the instruction was consistent with the language of the second amended information which doubtless was based upon language in State v. Allen. Even though inclusion of this element was error, it was harmless. Both Petitioner and the State acquiesced in the instruction. Neither took exception. “A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have
The primary objective of statutory interpretation is to give force to the language of a statute and carry out the intent of the Legislature.
SUMMARY AND CONCLUSION
The Washington Criminal Code does not include a definition of the word “assault” as used in RCW 9A.36-
The trial court, while following the language of the amended information and perhaps being persuaded by State v. Allen, erroneously instructed the jury that proof of knowledge by the defendant of the victim’s status was required under RCW 9A.36.031(l)(g). This was harmless error. Instruction Number 13 contains language identical to the language in RCW 9A.36.031(l)(g). Instruction Number 15 appropriately defines “assault.” The testimony of Officer Gregory Neubert established that he was in apprehension and imminent fear of bodily injury. Although inclusion of the requirement of proof of knowledge in Instruction Number 14 actually benefited Petitioner by presenting another hurdle for the State to overcome in order to convict him, the jury still found him “guilty.” The State was responsible for creating this hurdle.
We conclude that knowledge that the victim is a law enforcement officer in the performance of official duties at the time of an assault is not an implied element of the crime of assault in the third degree under RCW 9A.36-.031(l)(g). We agree with the conclusion of the Court of Appeals, Division One, that the State must prove that the victim was a law enforcement officer performing official duties at the time of the assault, but is not required to prove the defendant knew either that the victim was a law enforcement officer or that the victim was performing official duties at the time of the assault.
Guy, C.J., and Alexander, Talmadge, Ireland, and Bridge, JJ., concur.
State v. Brown, 94 Wn. App. 327, 972 P.2d 112 (1999).
Id. at 347.
Petitioner was also charged with one count of violation of the Uniform Controlled Substances Act (VUSCA) under RCW 69.50.401(c). Clerk’s Papers at 66-67. The original information filed on March 13, 1995 included Count I for VUSCA
Supplemental Certification for Determination of Probable Cause, Clerk’s Papers at 8.
Clerk’s Papers at 66.
Report of Proceedings at 166.
Id. at 171.
Id. at 171, 200.
Id. at 174.
M at 175.
Id. at 175-76.
Id. at 176.
Id. at 178.
Id.
Id.
Id.
Id. at 177-79.
Id. at 179-80, 271.
Id. at 180.
Id. at 181-82.
Id. at 184, 189.
Id. at 162, 189, 194.
Id. at 192, 194.
Id. at 195, 197.
Id. at 197.
Id. at 197-98.
Id.at 198.
Id. at 199.
Id. at 199-200.
Id. at 200-01.
Id. at 200, 335.
Id. at 201.
Id. at 201-02.
Id. at 202.
M In an ironic twist, Petitioner was in fact shot by Officer Neubert, the victim of the assault for which Petitioner was charged. The charged assault was totally without impact. The record does not indicate whether there was an investigation of the actual shooting by the officer.
Id. at 203-04, 286-87. The actual specifications of the lighter are not indicated in the record, although the fighter was admitted in evidence.
Id. at 201.
Clerk’s Papers at 84.
Id. at 85.
Id. at 86.
Report of Proceedings at 774-76.
“Inquiry from the Jury and Court’s Response, Clerk’s Papers at 90.
Id.
Verdict Form, Clerk’s Papers at 68-69; Report of Proceedings at 905.
Judgment and Sentence, Clerk’s Papers at 93.
Clerk’s Papers at 98.
67 Wn. App. 824, 840 P.2d 905 (1992).
Appellant’s Opening Br. at 1, 14-15.
State v. Brown, 94 Wn. App. at 332 (citing State v. Eastmond, 129 Wn.2d 497, 502, 919 P.2d 577 (1996)); see also RAP 2.5(a)(3).
State v. Brown, 94 Wn. App. at 347.
Pet. for Review at 1; see also RAP 13.7(b), which provides: “If the Supreme Court accepts review of a Court of Appeals decision, the Supreme Court will review only the questions raised in the . . . petition for review and the answer
Order Granting Pet. for Review, 138 Wn.2d 1008 (1999).
RCW 9A.04.010(1).
Chapter 9A.36 RCW
RCW 9A.36.031 was enacted in 1986. Laws of 1986, ch. 257, § 6. The Washington State Legislature amended the statute in 1989 to include “[alssaults [of] a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.” Laws of 1989, ch. 169, § 1 (concerning H.B. 1258, 51st Leg. (1989)). Senate Journal, 51st Leg. (1989) at 892, 1092-93.
See RCW 9A.04.110.
Supplemental Br. of Pet’r at 5-15.
Supplemental Br. of Resp’t at 2-11. This argument is inconsistent with the second amended information filed by the State which charged that Petitioner “did intentionally assault Officer Gregory Neubert, knowing that he was a law enforcement officer . . . who was performing official duties at the time of the assault.”
In addition to the recodification, the Legislature amended RCW 9A.36.031 four times after State v. Allen was decided in 1992. Laws of 1996, ch. 266, § 1; Laws of 1997, ch. 172, § 1; Laws of 1998, ch. 94, § 1; Laws of 1999, ch. 328, § 1. No change was made in the wording of subsection (g).
Id. at 826 (emphasis added).
RCW 9A.08.010(l)(b) provides: “KNOWLEDGE. A person knows or acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.”
State v. Allen, 67 Wn. App. at 827.
State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995).
State v. Wilbur, 110 Wn.2d 16, 18, 749 P.2d 1295 (1988).
State v. Tunney, 129 Wn.2d 336, 339 n.2, 917 P.2d 95 (1996); 13A Seth A. Fine & Douglas J. Ende, Washington Practice: Criminal Law with Sentencing Forms § 305, at 45 (2d ed. 1998).
Concurrence Opinion
(concurring) — As a result of today’s opinion, an assailant who commits an otherwise misdemeanor assault on a person he believes to be his or her compatriot in crime, may nevertheless be convicted of a felony if the victim is per chance an undercover law enforcement officer. From a deterrent and retributive perspective, I believe this is illogical and unjust. RCW 9A.36.031 was enacted by the Legislature to deter attacks on certain specified persons who are targeted by an assailant who is aware of their status. Consistent with this purpose, I would require the State to prove that an assailant knew, or reasonably should have known, that a victim was a law enforcement officer before a conviction under RCW 9A.36.031(l)(g) may lie. The jury instructions in this case adequately conveyed this statement of the law.
Several states have enacted statutes providing enhanced penalties for assaults against law enforcement officers. The rationale behind these provisions is easily discerned:
These statutes have a twofold purpose: to reflect the societal gravity associated with assaulting a public officer and, by providing an enhanced deterrent against such assault, to accord to public officers and their functions a protection greater than that which the law of assault otherwise provides to*472 private citizens and their private activities. Consonant with these purposes, the accused’s knowledge that his victim had an official status or function is invariably recognized by the States as an essential element of the . . . offense.
United States v. Feola, 420 U.S. 671, 698, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975) (footnotes omitted) (Stewart, J., dissenting).
In many states, an assailant’s knowledge of the victim’s status is expressly required by statute. See Ariz. Rev. Stat. Ann. § 13-1204(A)(5) (West 1989); Ark. Code Ann. § 5-13-202(4)(a)(A) (Michie 1997); Cal. Penal Code § 243 (West 1999); Colo. Rev. Stat. § 18-3-201 (1999); Idaho Code § 18-915 (1997); III. Comp. Stat. § 720, para. 5/12-2(a)(6) (1998); Iowa Code Ann. § 708.3A(1) (West Supp. 2000); La. Rev. Stat. Ann. § 14:34.2 (West 1997). In others, courts have read an implied knowledge requirement into their state’s statutory provisions. D.C. Code Ann. § 22-505(a) (2000); Fletcher v. United States, 335 A.2d 248, 251 (D.C. App. 1975); Nelson v. United States, 580 A.2d 114, 118 (D.C. App. 1990); Me. Rev. Stat. Ann. tit. 17-A, § 752-A (West Supp. 1999), State v. Morey, 427 A.2d 479 (Me. 1981).
With a requirement that the assailant know the victim’s status, these laws further the twin aims of criminal law: deterrence and retribution. See In re Personal Restraint of Young, 122 Wn.2d 1, 22, 857 P.2d 989 (1993) (“retribution and deterrence . . . are the goals of criminal law”). Without a knowledge requirement, they do not. Indeed, I cannot “understand why an individual who commits an assault on a person he does not know to be an official is any more blameworthy than one who commits an assault punishable under [a lesser assault statute] and is thus any more deserving of the greater punishment for an offense of a higher class.” State v. Morey, 427 A.2d at 483.
The majority has failed to take into account what RCW 9A.36.031 was designed to accomplish. In so doing they have disavowed the basic tenet that “[i]n interpreting a statute, th[is] court seeks to foster the purposes for which it was enacted.” State v. Coyle, 95 Wn.2d 1, 5, 621 P.2d
Strict criminal liability is strongly disfavored in the law. State v. Bash, 130 Wn.2d 594, 925 P.2d 978 (1996). While RCW 9A.36.031 is not a pure strict liability statute — the mental element for the actus reus of assault contemplates knowing or purposeful conduct, State v. Hopper, 118 Wn.2d 151, 822 P.2d 775 (1992); State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994) — it nevertheless, under the majority’s interpretation, contains a strict liability element.
Indeed, legislative intent in this case points directly to the conclusion that an assailant’s knowledge of the victim’s status was intended to be an element of RCW 9A.36.031. It is axiomatic that when construing a statute subject to more than one interpretation, our principal aim is to give effect to the intent of the Legislature. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986). The Legislature’s intent in heightening the punishment for attacks against law enforcement officers was to deter such attacks. In the House Bill Report, this point is made clear:
A number of police officers are assaulted in the line of duty. The bill would deter assaults on police officers because the bill increases the crime to a felony offense.
H.B. Rep. 1258, at 2 (Wash. 1989). Without a requirement that the assailant have knowledge of the victim’s status, assaults against law enforcement officers are not deterred to any greater degree than other simple assaults.
It is also true that “[w]e presume the Legislature is familiar with past judicial interpretations of its enactments.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789, 719 P.2d 531 (1986). “The Legislature is deemed to acquiesce in the interpretation of the court if no change is made for a substantial time after the decision.” State v. Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988). Beginning with State v. Allen, 67 Wn. App. 824, 840 P.2d 905 (1992), which was decided in 1992, the courts of this state uniformly have held that knowledge of the status of the victim was a prerequisite to a third degree assault conviction. See also State v. Filbeck, 89 Wn. App. 113,
Johnson and Sanders, JJ., concur with Madsen, J.
I agree with the majority’s conclusion that the State need not show an assailant’s knowledge that the victim is engaged in “official duties.” Majority at 470. In my opinion, once an assailant has formed a reasonable belief that a victim is a law enforcement officer the assailant is on notice that the officer may be engaged in “official duties.” RCW 9A.36.031(l)(g). See Lande v. Menage Ltd. Partnership, 702 A.2d 1259 (D.C. App. 1997) (even off-duty police officers can be engaged in official functions).
Professors LaFave and Scott appear to take a position antithetical to that of the majority. As stated in their treatise:
The distinctions now drawn between various kinds of crimes in terms of their seriousness, as reflected by the punishments provided for them, would lose much of their significance if an intent to cause any one specific type of harm would suffice for conviction as to any other type of harm which is criminal when intentionally caused.
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 34, at 243 (1972).
By the terms of the Model Penal Code (MPC), the majority’s interpretation of RCW 9A.36.031 also fails. Under the MPC an assault victim’s status, if included in the definition of the crime, would be considered a material element of the offense, justifying an implied mental element. 1 American Law Institute Model Penal Code §§ 1.13, 2.02 (1985).
